dismissed EB-2 NIW Case: Medical Engineering

U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Of$ce ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
Services 
PETITION: Immigrant Petition for Alien Worker as a Member of the Professions Holding an Advanced 
Degree or an Alien of Exceptional Ability Pursuant to Section 203(b)(2) of the Immigration 
and Nationality Act, 8 U.S.C. fj 1153(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 8 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. fj 103.5(a)(l)(i). 
Perry Rhew L) 
Chief, Administrative Appeals Office 
Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The matter is now before the Administrative Appeals Office (AAO) on appeal. The AAO will 
dismiss the appeal. 
The petitioner seeks classification pursuant to section 203(b)(2) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. tj 1153(b)(2), as a member of the professions holding an advanced degree. The 
petitioner seeks employment as a postdoctoral research associate at Duke University, Durham, North 
Carolina. The petitioner asserts that an exemption from the requirement of a job offer, and thus of a 
labor certification, is in the national interest of the United States. The director found that the petitioner 
qualifies for classification as a member of the professions holding an advanced degree, but that the 
petitioner has not established that an exemption from the requirement of a job offer would be in the 
national interest of the United States. 
On appeal, the petitioner submits a brief from counsel and various exhibits, most of which duplicate 
materials already in the record. 
Section 203(b) of the Act states, in pertinent part: 
(2) Aliens Who Are Members of the Professions Holding Advanced Degrees or Aliens of 
Exceptional Ability. -- 
(A) In General. -- Visas shall be made available . . . to qualified immigrants who are 
members of the professions holding advanced degrees or their equivalent or who 
because of their exceptional ability in the sciences, arts, or business, will substantially 
benefit prospectively the national economy, cultural or educational interests, or welfare 
of the United States, and whose services in the sciences, arts, professions, or business 
are sought by an employer in the United States. 
(B) Waiver of Job Offer - 
(i) . . . the Attorney General may, when the Attorney General deems it to be in 
the national interest, waive the requirements of subparagraph (A) that an alien's 
services in the sciences, arts, professions, or business be sought by an employer 
in the United States. 
The director did not dispute that the petitioner qualifies as a member of the professions holding an 
advanced degree. The sole issue in contention is whether the petitioner has established that a waiver of 
the job offer requirement, and thus a labor certification, is in the national interest. 
Neither the statute nor the pertinent regulations define the term "national interest." Additionally, 
Congress did not provide a specific definition of "in the national interest." The Committee on the 
Judiciary merely noted in its report to the Senate that the committee had "focused on national interest by 
increasing the number and proportion of visas for immigrants who would benefit the United States 
economically and otherwise. . . ." S. Rep. No. 55, 101 st Cong., 1 st Sess., 1 1 (1 989). 
Supplementary information to regulations implementing the Immigration Act of 1990 (IMMACT), 
published at 56 Fed. Reg. 60897,60900 (November 29, 1991), states: 
The Service [now U.S. Citizenship and Immigration Services (USCIS)] believes it 
appropriate to leave the application of this test as flexible as possible, although clearly 
an alien seeking to meet the [national interest] standard must make a showing 
significantly above that necessary to prove the "prospective national benefit" 
[required of aliens seeking to qualify as "exceptional."] The burden will rest with the 
alien to establish that exemption from, or waiver of, the job offer will be in the 
national interest. Each case is to be judged on its own merits. 
Matter of New York State Dept. of Transportation, 22 I&N Dec. 215 (Comrnr. 1998), has set forth 
several factors which must be considered when evaluating a request for a national interest waiver. First, 
it must be shown that the alien seeks employment in an area of substantial intrinsic merit. Next, it must 
be shown that the proposed benefit will be national in scope. Finally, the petitioner seeking the waiver 
must establish that the alien will serve the national interest to a substantially greater degree than would 
an available U.S. worker having the same minimum qualifications. 
It must be noted that, while the national interest waiver hlnges on prospective national benefit, it clearly 
must be established that the alien's past record justifies projections of future benefit to the national 
interest. The petitioner's subjective assurance that the alien will, in the future, serve the national interest 
cannot suffice to establish prospective national benefit. The inclusion of the term "prospective" is used 
here to require future contributions by the alien, rather than to facilitate the entry of an alien with no 
demonstrable prior achievements, and whose benefit to the national interest would thus be entirely 
speculative. 
We also note that the regulation at 8 C.F.R. fj 204.5(k)(2) defines "exceptional ability" as "a degree 
of expertise significantly above that ordinarily encountered" in a given area of endeavor. By statute, 
aliens of exceptional ability are generally subject to the job offerllabor certification requirement; 
they are not exempt by virtue of their exceptional ability. Therefore, whether a given alien seeks 
classification as an alien of exceptional ability, or as a member of the professions holding an 
advanced degree, that alien cannot qualify for a waiver just by demonstrating a degree of expertise 
significantly above that ordinarily encountered in his or her field of expertise. 
The petitioner filed the petition on June 29, 2007. In a statement accompanying the initial filing, 
counsel stated that the petitioner "has extensive research experience in the nationally crucial field of 
medical engineering, particularly focusing on cancer research." Counsel asserted: "As evidence of the 
recognition [the petitioner's] work has received from the research community, leading researchers in his 
field and scientists at research universities throughout the United States have submitted letters of 
support." Of the six letters submitted with the petition, five are from current or former faculty members 
at Duke or the University of Utah (where the petitioner earned his doctorate). 
Ever since [the petitioner] joined our institute, we have been collaborating on a research 
project for the development of novel real-time MRI [magnetic resonance imaging]- 
based feedback controllers to further study the combined bio-effects of hyperthermia 
with radiation and chemotherapy. This research will substantially benefit cancer 
patients everywhere in the United States. 
. . . Hyperthermia is a cancer treatment method that . . . relies on focusing power into the 
cancerous region to raise and sustain the tumor temperature at a therapeutic level, 
(43"C), so as to deliver a lethal thermal dose. At the same time, surrounding normal 
tissues' temperatures are required to be maintained at safe lower levels, e.g., 38-41" C, 
to prevent damage. Delivering such focused power . . . is a challenging task. . . . 
Moreover, to gauge the effectiveness of a hyperthermia treatment, temperature 
measurements are necessary. However, the traditional thermocouple temperature 
measurement technique is invasive. . . . [The] nonlinear temperature behavior in humans 
makes real-time temperature prediction challenging and the numerical simulations of 
bio-heat transfer equation difficult and time-consuming. Recognizing these challenges, 
our research group at Duke University proposed a way to re-formulate the problem that 
enables us to . . . use real-time magnetic resonance images as a feedback for a controller 
(to be developed) to directly adjust the amplitudes and phases of antennas. A model 
reduction method was also developed according to this formula, which serves as a 
foundation to develop a real-time feedback control algorithm that automatically steers 
and focuses microwave power to tumor. . . . 
After [the petitioner] joined my research project, he developed a least-squares error 
based feedback focusing algorithm that gives the best approximated driving vector to 
drive our microwave antenna array to steer and focus at tumor. . . . [Blased on [the 
petitioner's] solid understanding in applied mathematics, we saved significant time and 
effort. Regarding another important part of my research project: using model reduction 
methods to enable real-time feedback control . . . we successfully extended our original 
model reduction . . . to handle practical situations for which blood perfusion depends on 
nonlinearly on temperature variations. The success of this model reduction method 
allows us to build a "virtual antenna phased array." . . . Thus, significant time and effort 
are saved on antenna array calibrations, since we do not need to build many different 
antenna arrays. 
the petitioner's "academic supervisor at the University of Utah" (UU), 
stated that the petitioner "has already demonstrated his ability to make important contributions in this 
Page 5 
area of research. . . . [I]t would be realistic to anticipate more significant contributions from his 
continued participation in these research efforts." 
an adjunct research assistant professor at UU and a member of the petitioner's thesis 
defense committee, stated: "The most significant finding in [the petitioner's] two years [of] 
postgraduate research was revelation of the possibility of focusing power at tumor deeply seated in 
human brain without craniotomy." also stated: "we worked together on combining a model 
reduction method for ultrasonic propagation in human heterogeneous tissues to the bio-heat transfer 
equations. This is expected to produce significant impact on ultrasonic hyperthermia . . . [by reducing] 
computational times to simulate for one set of ultrasound transducer settings." noted that, in 
his postdoctoral work, the petitioner studied microwaves rather than ultrasound, but stated: "with his 
solid backgrounds in engineering and applied mathematics, I expect him to succeed in that area." 
I was a faculty member in the Department of Mechanical Engineering at University of 
Utah, while [the petitioner] pursued his doctoral degree, and served on his graduate 
advisory committee. During that time, I became well acquainted with him. . . . The 
results which [the petitioner] obtained have great importance in developing non-invasive 
methodologies for cancer treatment. 
r stated that the petitioner's '.Ph.D. efforts have received international 
recognition," and that the petitioner's "novel real-time MRI based feedback focusing algorithm 
overcomes the measurement noise which previously plagued our MRI temperature images, and he has 
made major forward progress handling the uncertainties in human dielectric and thermal diffusion 
properties." deemed the petitioner "virtually indispensable to the success of our ongoing 
research." 
The only initial witness without a Duke or UU connection is 
 reader in Therapeutic 
Ultrasound at the Institute of Cancer Research, Sutton, United Kingdom, who stated: "I have personally 
never worked with [the petitioner], but I knew him through a short phone interview when he applied for 
- - 
a postdoctoral fellow position within my research group?' 
 whether or not 
the interview resulted in a job offer. Describing the 
 stated: 
An important finding made by [the petitioner] in Taiwan was the demonstration in 1997, 
using his numerical simulations . . .[of] the possibility of using a sharply focused 
ultrasonic beam . . . to destroy deep-seated brain turnours in patients while sparing 
surrounding normal brain tissue and the skull. . . . An important output of his studies [at 
UU] is information about the spatial distribution of thermal effects from a single 
Gaussian shaped focal zone pulse that results in the maximum allowable temperature at 
the centre point of the focal zone. 
. . . His work to date has already shown the promise of new ways of simplifying the time 
intensive pre-treatment optimization and real-time control of hyperthermia for cancer 
treatment. His achievements are truly significant and have had an important impact on 
this branch of cancer research. 
The petitioner submitted copies of his published articles and conference presentation abstracts, but no 
direct evidence of how the scientific community received these works. The petitioner also submitted 
evidence of his participation in peer review of manuscripts, but nothing to show that such peer review is 
regarded as a privilege rather than a widely shared duty. 
On October 8, 2008, the director instructed the petitioner to submit further evidence to establish 
eligibility under Matter of New York State Dept. of Transportation. The director stated that the 
petitioner's initial evidence does not sufficiently distinguish him from others in the field. 
In response, the petitioner submitted copies of additional articles, abstracts, and peer review 
documentation. The director had not indicated that submission of more such materials would establish 
eligibility. These materials establish only that the petitioner has been productive in his field; they do not 
establish the impact of the petitioner's work. Furthermore, many of these materials (as well as 
information regarding the petitioner's receipt of a $250 prize fiom Duke) appeared well after the 
petition's filing date. An applicant or petitioner must establish that he or she is eligible for the requested 
benefit at the time of filing the application or petition. 8 C.F.R. 5 103.2(b)(l). Therefore, a previously 
ineligible alien cannot become eligible as a result of events that occurred after the filing date. See 
Matter ofKatigbak, 14 I&N Dec. 45'49 (Regl. Cornmr. 1971). 
The petitioner submitted copies of three "[slelected paper[s] citing [his] work," and database printouts 
identifying a total of eight citing articles. Four of these citations are self-citations by the petitioner or 
his collaborators, or citations by others who have worked closely with the petitioner. One of the three 
submitted articles contains such a self-citation; - co-wrote the article, citing his own 
earlier work with the petitioner. Only one of the independent citations was published before the 
petition's June 2007 filing date. As noted in the preceding paragraph, subsequent developments do not 
show that the petitioner was already eligible on the filing date, before those developments took place. 
Eight Mer letters accompanied the petitioner's response to the director's notice. - 
stated that the petitioner "is the only one who has succeeded in developing a novel method of 
dynamical MR-based feedback control of antenna patterns for hyperthermia treatment." - 
described the petitioner's proposal of a "virtual antenna phased array" as "[alnother breakthrough 
method." 
"work was much better than others' work" in terms of "developing algorithms to better destroy 
cancerous tissues using externally applied and focused energy sources." stated that the 
petitioner's method used fewer antennas "and also addressed issues of overcoming the heat dissipation 
issue . . . and the antenna excitation uncertainty." 
among the graduate students that I have met," but did not discuss specifics of the petitioner's work. 
-stated that the petitioner "has already done exceptional work in the area of hyperthermia" 
and "has had considerable success in applying" "novel mathematical methods to solve engineering 
problems." 
credited the petitioner with "significant achievements in the 
treatment optimization and control of power delivery of hyperthermia." devoted much 
of his letter to the petitioner's "develop[ment ofl a real-time virtual source feedback controller." The 
earlier letter from indicated that, at the time of filing, such a controller was still "to be 
developed," and the petitioner was, at the time, studying feedback mechanisms to be applied in the 
future development of the controller. 
- of Charit6 Medical School in Berlin, Germany, stated that the petitioner 
"developed a new technical method to optimize hyperthermia treatment of patients with cancer in the 
extremities . . . [using] mini-annular phased array applicators under Magnetic Resonance (MR) 
guidance. This is a significant contribution to the field of hyperthermia." 
[The petitioner] devised a rather novel modeling approach to study the impact on tissue 
properties and the optimal methods to produce hyperthermia treatments using focused 
ultrasound devices. . . . [A]t Duke University, . . . he has developed and implemented 
very accurate and powerful algorithms for computer modeling the electromagnetic fields 
and heating patterns for the deep heating applicators. . . . [The petitioner] has devised an 
inverse planning approach to better control and deliver optimized heating power to lead 
to better and safer patient treatment. . . . 
In summary, [the petitioner] is an excellent and recognized researcher in both the field of 
hyperthermia cancer therapy and biomedical modeling. 
with "substantial contributions to the field of local-regional hyperthermia using externally applied 
energy sources like ultrasonic (US) and electromagnetic (EM) waves." praised the 
petitioner's published work, but the only paper that he discussed in detail was a 2008 paper that had not 
yet been published at the time of filing. 
of the University Medical Center, Utrecht, the 
e groups of [and] - 
very well. [The petitioner] did very good scientific work in these groups, he contributes with 
. . 
outstanding papers in the field of oncology." 
The director denied the petition on December 9, 2008. The director acknowledged the intrinsic merit 
and national scope of the petitioner's occupation, but found that the petitioner had not established the 
"unique significance" of his work. On appeal, counsel states that the petitioner's "record of prior 
achievement in medical engineering" is "quite apparent" from the record, and that the petitioner "has 
played a leading role and served in an important capacity at many research and academic institutions." 
The petitioner's current work in radiation oncology, which is the cornerstone of his waiver claim, has 
taken place at only two institutions, while the petitioner was a student at UU and a postdoctoral 
researcher at Duke. Counsel's reference to "many . . . institutions" includes prior short-term teaching 
positions in Taiwan, regarding subjects such as "Construction Management" and "Soil Mechanics" with 
no demonstrated relevance to the waiver claim. 
Regarding the petitioner's participation in peer review ofjournal manuscripts, counsel states: 
This is particularly impressive because Ph.D. students and Post Doctoral Fellows are 
normally only invited to serve as reviewers of manuscripts submitted by their peers or 
other scientists with vastly more experience under supervision. Inviting an individual 
who is still a Ph.D. student to act as a peer reviewer and associate editor is explicit 
recognition that Appellant is considered outstanding in comparison not only to his peers 
but also to individuals with vastly more experience than him. 
The unsupported assertions of counsel do not constitute evidence. See Matter of Obaigbena, 19 I&N 
Dec. 533, 534 n.2 (BIA 1988); Matter of Laureano, 19 I&N Dec. 1, 3 n.2 (BIA 1983); Matter of 
Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). The petitioner has submitted evidence of hs 
work as a peer reviewer, and on appeal he submits a copy of the "Guidelines for Referees of Articles for 
Medical Physics," but these materials do not support counsel's claims. The "Guidelines" state: "In 
serving as a reviewer, it is permissible to ask a student or fellow to review an article as a learning 
experience." This passage permits a reviewer to delegate responsibility to a subordinate, but it does not 
show that students and fellows rarely receive review requests in their own right. 
Counsel states that the petitioner "received a top prize" at a 1997 conference for "a very significant 
finding in developing treatment for patients with brain tumors using safer, non-invasive techniques." 
The record contains no objective, documentary evidence to show the extent, if any, to which the 
petitioner's finding has been put to practical use in cancer treatment during the ten years between the 
1997 conference and the 2007 filing of the petition. 
Counsel states that the petitioner failed to give sufficient consideration to independent witness letters, 
and the petitioner submits a copy of a previous AAO decision in which the AAO approved a petition on 
the basis of strong witness letters in the absence of heavy citation of the alien's published work. While 
8 C.F.R. 5 103.3(c) provides that AAO precedent decisions are binding on all USCIS employees in 
the administration of the Act, unpublished decisions are not similarly binding. Also, we must 
consider each case on its individual merits. Where, as here, the value of the petitioner's work is said to 
lie in its usefulness in improving cancer therapy, it is not only reasonable but essential for us to note the 
evidence, or lack thereof, regarding the actual use of the petitioner's methods in such therapy. The 
record contains little information on this point. 
Also, while we have not disregarded the independent witness letters, where an opinion is not in accord 
with other information or is in any way questionable, the AAO is not required to accept or may give less 
weight to that evidence. See Matter of Caron International, 19 I&N Dec. 79 1 (Commr. 1988). USCIS 
is ultimately responsible for making the final determination regarding an alien's eligibility for the 
benefit sought. Id. at 795. The submission of letters from experts supporting the petition is not 
presumptive evidence of eligibility; USCIS may evaluate the content of those letters as to whether 
they support the alien's eligibility. See id. at 795. 
In evaluating the reference letters, we note that letters containing mere assertions of industry interest 
and positive response in the field are less persuasive than letters that provide specific examples of 
how the petitioner has influenced the field. In addition, letters from independent references who 
were previously aware of the petitioner through his reputation and who have applied his work are far 
more persuasive than letters from independent references who were not previously aware of the 
petitioner and are merely responding to a solicitation to review the petitioner's curriculum vitae and 
work and provide an opinion based solely on this review. 
Here, some letters place considerable emphasis on developments after the petition's filing date. 
Onli one independent witness specifically daimed to have been familiar with the 
petitioner's work prior to the filing of the petition. The letters show that the petitioner has located - 
witnesses who are strongly impressed by his work, but they are not the definitive evidence of major 
influence that counsel claims. The petitioner's minimal citation record at the time of filing, along 
with other information in the record, indicates that while the petitioner's work may indeed hold 
promise for future cancer therapies, his demonstrated impact as of the filing date did not distinguish 
him from his peers. At best, the petitioner filed the petition prematurely. 
As is clear from a plain reading of the statute, it was not the intent of Congress that every person 
qualified to engage in a profession in the United States should be exempt from the requirement of a job 
offer based on national interest. Likewise, it does not appear to have been the intent of Congress to 
grant national interest waivers on the basis of the overall importance of a given profession, rather than 
on the merits of the individual alien. On the basis of the evidence submitted, the petitioner has not 
established that a waiver of the requirement of an approved labor certification will be in the national 
interest of the United States. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. 5 1361. The petitioner has not sustained that burden. This decision is without prejudice to the 
filing of a new petition by a United States employer accompanied by a labor certification issued by the 
Department of Labor, appropriate supporting evidence and fee. 
ORDER: The appeal is dismissed.